State v. Thorpe

State of NebraSka , appellee , v.
terrell t. thorpe , appellaNt.
783 N.W.2d 749
Filed June 18, 2010. 	No. S-09-442.
1. Juries: Discrimination: Prosecuting Attorneys: Proof. The evaluation of
whether a party has used peremptory challenges in a racially discriminatory
manner is a three-step process. First, the trial court must determine whether the
defendant has made a prima facie showing that the prosecutor has exercised
peremptory challenges because of race. Second, if the requisite showing has been
made, the burden shifts to the prosecutor to present a race-neutral explanation for
striking the juror in question. Third, the trial court must then determine whether
the defendant has carried his or her burden of proving purposeful discrimination.
The third step involves evaluating the persuasiveness of the justification proffered
by the prosecutor, but the ultimate burden of persuasion regarding racial motiva-
tion rests with, and never shifts from, the opponent of the strike.
2. Juries: Discrimination: Proof: Appeal and Error. For challenges under Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), an appellate
court reviews de novo the facial validity of an attorney’s race-neutral explanation
for using a peremptory challenge as a question of law. And it reviews for clear
error a trial court’s factual determinations whether an attorney’s race-neutral
explanation is persuasive and whether his or her use of a peremptory challenge
was purposefully discriminatory.
3. Juries: Discrimination: Prosecuting Attorneys: Proof. Although the prosecutor
must present a comprehensible reason for a peremptory challenge, the second
step of the analysis under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90
L. Ed. 2d 69 (1986), does not demand an explanation that is persuasive, or even
plausible; so long as the reason is not inherently discriminatory, it suffices.
4. ____: ____: ____: ____. In determining whether a defendant has established
purposeful discrimination in the use of a peremptory challenge, a trial court may
consider whether the prosecutor’s criterion has a disproportionate impact on a
particular race. If so, the court may consider whether such evidence shows the
prosecutor’s proffered explanation was pretextual.
5. Juries: Discrimination: Proof. In determining whether there is a sufficient pat-
tern of peremptory strikes to support an inference of discrimination, the following
factors are relevant: (1) whether members of the relevant racial or ethnic group
served unchallenged on the jury and whether the striking party struck as many of
the relevant racial or ethnic group from the venire as it could; (2) whether there
is a substantial disparity between the percentage of a particular race or ethnicity
struck and the percentage of its representation in the venire; and (3) whether there
is a substantial disparity between the percentage of a particular race or ethnicity
struck and the percentage of its representation on the jury.
6. Motions for Mistrial: Appeal and Error. An appellate court will not disturb a
trial court’s decision whether to grant a motion for mistrial unless the court has
abused its discretion.
STATE v. ThorpE 	11
Cite as 280 Neb. 11
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

7. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
8. Criminal Law: Jury Misconduct: Proof. A criminal defendant claiming jury
misconduct bears the burden of proving, by a preponderance of the evidence, (1)
the existence of jury misconduct and (2) that such misconduct was prejudicial to
the extent that the defendant was denied a fair trial.
9. Criminal Law: Juror Misconduct: Presumptions: Proof. In a criminal case,
misconduct involving an improper communication between a nonjuror and a juror
gives rise to a rebuttable presumption of prejudice which the State has the burden
to overcome.
10. Jury Misconduct: Proof. Extraneous material or information considered by a
jury can be prejudicial without proof of actual prejudice if (1) the material or
information relates to an issue submitted to the jury and (2) there is a reasonable
possibility that it affected the verdict to the challenger’s prejudice.
11. Jury Misconduct. Whether prejudice resulted from jury misconduct must be
resolved by the trial court’s drawing reasonable inferences as to the effect of the
extraneous information on an average juror.
12. Juror Misconduct. Whether a defendant was prejudiced by juror misconduct
involves legal conclusions about a defendant’s right to an impartial jury and thus
presents a mixed question of law and fact.
13. Motions for Mistrial: Juror Misconduct: Appeal and Error. When a defendant
moves for a mistrial based on juror misconduct, an appellate court will review
the trial court’s determinations of witness credibility and historical fact for clear
error and review de novo its ultimate determination whether the defendant was
prejudiced by juror misconduct.
14. Jury Instructions. Whether a jury instruction is correct is a question of law.
15. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusions.
16. Criminal Law: Witnesses. Evidence of a defendant’s attempted intimidation or
intimidation of a State’s witness is relevant evidence of the defendant’s “con-
scious guilt” that a crime has been committed. Also, it can serve as a basis for an
inference that the defendant is guilty of the crime charged.
17. Appeal and Error. plain error will be noted only where an error is evident from
the record, prejudicially affects a substantial right of a litigant, and is of such a
nature that to leave it uncorrected would cause a miscarriage of justice or result
in damage to the integrity, reputation, and fairness of the judicial process.
Appeal from the District Court for Douglas County: peter
C. batailloN, Judge. Affirmed in part, and in part remanded
with directions.
Andrew J. Wilson, of Walentine, o’Toole, McQuillan &
Gordon, for appellant.
Jon Bruning, Attorney General, and George r. Love for
appellee.
12 	280 NEBrASkA rEporTS

heaviCaN, 	C.J., 	Wright, 	C oNNolly, 	gerrard, 	StephaN,
MCC orMaCk , and M iller-lerMaN, JJ.
C oNNolly, J.
I. SUMMArY
After a jury trial, the State convicted Terrell T. Thorpe of
two counts of first degree murder and two counts of use of a
weapon to commit a felony. The court sentenced him to life
imprisonment without parole on each of the murder counts
and to 30 to 40 years’ imprisonment and 40 to 50 years’
imprisonment on the use of a weapon counts. he appeals
his convictions and sentences. We affirm his convictions on
the murder charges and the convictions and sentences on the
weapons charges. But we conclude that the life without parole
sentences are invalid. We vacate the life without parole sen-
tences and remand to the district court to sentence Thorpe to
life sentences.
II. ASSIGNMENTS oF Error
Thorpe assigns three errors: (1) The court erred in fail-
ing to find that the State’s use of a peremptory challenge to
exclude juror No. 31 violated his right to equal protection; (2)
the court erred in overruling his motion for mistrial based on
the improper contact between a witness and a juror; and (3)
the court erred in giving instruction No. 14 regarding con-
scious guilt.
III. BACkGroUND
The 	underlying 	facts 	are 	substantially 	similar 	to 	those
addressed by this court in State v. Sellers,1 which addressed
an accomplice’s appeal. Summarized, the facts are that on
two separate occasions, Taiana Matheny lured a young male
to a remote location, and then Terry Sellers and Thorpe beat,
robbed, and murdered him. Thorpe’s appeal focuses on three
events that occurred during his trial, and so we will set out
additional facts to separately address these issues.
1 State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
STATE v. ThorpE 	13
Cite as 280 Neb. 11

IV. ANALYSIS
1. B atson C halleNge duriNg Jury SeleCtioN
Thorpe argues that the State exercised a peremptory chal-
lenge to remove juror No. 31 solely because of her race. The
Equal protection Clause of the 14th Amendment forbids pros-
ecutors from using peremptory challenges for this reason.2
(a) Additional Facts
During voir dire, the prosecutor asked, “[I]f the State proves
beyond a reasonable doubt that . . . Thorpe is guilty of these
charges, is there anyone here that would not be able to vote
guilty?” Juror No. 31 answered:
Just with the evidence that they’re saying, I still would
have a problem. ’Cause how do I know it’s real, you
know? . . . And if he’s saying he didn’t do it, how do I
even know he’s telling the truth? But I wouldn’t just say,
oh, yeah, he did it, you know.
The prosecutor then explained that the jurors were to decide
whether, based upon what they saw and heard in the court-
room, the State had proved guilt beyond a reasonable doubt.
Juror No. 31 responded:
Because I have a problem with that, with the reasonable
doubt. If you’re not sure yourselves, how would you
be able to say, yeah, you did it? I mean, that’s my —
my thinking.
The reasonable doubt, um, well, it says at this time
you blah, blah, blah or this time blah, blah, blah. But
we didn’t see at that time, but we’re saying all evidence
shows it, and that’s what I have a problem with.
When the prosecutor explained that a “beyond a reasonable
doubt” standard was the standard applied in every criminal
case in America, juror No. 31 interrupted:
Well, I have the same feelings — you know, I have the
same feelings with all of it. If I didn’t see you — like I’m
at home with my children and I don’t see it. This one is
2 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986);
State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
14 	280 NEBrASkA rEporTS

saying that and this one is saying — the older people are
like, whoop ’em all and you get the right one.
Well, now they’re all bigger and so I can’t do it like
that. Sometimes I let it go because we’re bickering and
arguing and I don’t know who did it. But that happens in
my life a lot. So like I said, I couldn’t just say, okay, what
so-and-so is saying, I’ll go with that.
When the prosecutor responded that “[i]t sounds to me like
what you’re saying is that you put that burden of proof pretty
high,” juror No. 31 answered, “Yes, I do.”
Ultimately, the State exercised one of its peremptory strikes
on juror No. 31. Thorpe objected, arguing that the strike vio-
lated the principles of Batson v. Kentucky.3 In response, the
prosecutor noted that of the 38 total jurors struck by the State
and the defense, 4 were African-American. The prosecutor fur-
ther noted that of those four, two were stricken by the defense,
one by the court, and only one, juror No. 31, by the State.
When asked by the court why it struck juror No. 31, the pros-
ecutor responded:
The same reason the State struck . . . Juror No. 23. Both
[juror No. 31] and [juror No. 23], in describing their
interpretation of beyond a reasonable doubt, they both
said that they gave it a very high standard, higher than I
believe what the law requires.
[Juror No. 31], in fact, I believe said that she would
have 	a 	difficult 	time 	finding 	someone 	guilty 	if 	she
didn’t actually see them do it herself. That would be the
State’s reason . . . .
The prosecutor then clarified that the specific statement made
by juror No. 31 that concerned him was, “how would I
know he did it if I didn’t see him do it.” The prosecutor also
noted that he was concerned because juror No. 31 had stated
that the prosecutors “don’t even know whether he did it,
and now we have to decide.” The prosecutor explained that
another reason for the strike was that juror No. 31’s com-
ments left the “impression that she didn’t believe the State
3 Batson, supra note 2.
STATE v. ThorpE 	15
Cite as 280 Neb. 11

believed . . . Thorpe was guilty.” The court overruled the
Batson challenge.
(b) Standard of review
[1] The evaluation of whether a party has used peremptory
challenges in a racially discriminatory manner is a three-step
process.4 First, the trial court must determine whether the
defendant has made a prima facie showing that the prosecutor
has exercised peremptory challenges because of race.5 Second,
if the defendant makes the requisite showing, the burden shifts
to the prosecutor to present a race-neutral explanation for strik-
ing the juror in question.6 Third, the trial court then determines
whether the defendant has carried his or her burden of proving
purposeful discrimination.7 The third step requires the court
to evaluate the persuasiveness of the justification proffered by
the prosecutor, but the ultimate burden of persuasion regarding
racial motivation rests with, and never shifts from, the oppo-
nent of the strike.8
In several cases, we have stated that the adequacy of a
party’s neutral explanation of its peremptory challenges is
a factual determination.9 But this standard has confused the
facial validity of an attorney’s proffered explanation with its
persuasiveness. In Hernandez v. New York,10 the U.S. Supreme
Court’s plurality opinion stated that “[i]n evaluating the race
neutrality of an attorney’s explanation, a court must determine
4 See, Rice v. Collins, 546 U.S. 333, 126 S. Ct. 969, 163 L. Ed. 2d 824
(2006); Gutierrez, supra note 2.
5 See Gutierrez, supra note 2.
6 See id.
7 See id.
8 Id.
9 See, e.g., Gutierrez, supra note 2; State v. Floyd, 272 Neb. 898, 725
N.W.2d 817 (2007), disapproved on other grounds, State v. McCulloch,
274 Neb. 636, 742 N.W.2d 727 (2007); State v. Robinson, 272 Neb. 582,
724 N.W.2d 35 (2006); State v. Lowe, 267 Neb. 782, 677 N.W.2d 178
(2004).
10 Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 114 L. Ed. 2d
395 (1991) (emphasis supplied).
16 	280 NEBrASkA rEporTS

whether, assuming the proffered reasons for the peremptory
challenges are true, the challenges violate the Equal protection
Clause as a matter of law.” And it further stated, “Unless a dis-
criminatory intent is inherent in the prosecutor’s explanation,
the reason offered will be deemed race neutral.”11
But the facial validity of an attorney’s explanation is differ-
ent from its persuasiveness. persuasiveness is relevant to the
final step in the analysis—whether the defendant has satisfied
his or her burden of proving purposeful discrimination. It is
the final step in the analysis, in which the court must decide
whether an attorney’s explanation is persuasive, that presents
a question of fact. In other words, whether an attorney’s
race-neutral explanation for a peremptory challenge should be
believed presents a question of fact.12
[2] So we now correct our standard of review to be more
consistent with the U.S. Supreme Court’s precedent. For Batson
challenges, we will review de novo the facial validity of an
attorney’s race-neutral explanation for using a peremptory chal-
lenge as a question of law. And we will review for clear error a
trial court’s factual determinations whether an attorney’s race-
neutral explanation is persuasive and whether his or her use of
a peremptory challenge was purposefully discriminatory.
(c) resolution
The trial court, without specifically finding that Thorpe
had made a prima facie case, asked the State to tender a
race-neutral explanation for the strike, and the State com-
plied. Then under the third step, the trial court evaluated the
persuasiveness of that explanation in determining whether
Thorpe carried his burden of proving a racial motivation for
the strike. Under this circumstance, whether Thorpe made a
prima facie showing of purposeful discrimination is moot.13
We consider only whether the prosecutor offered an adequate
race-neutral explanation for the strike and whether the trial
11 Id., 500 U.S. at 360.
12 See Hernandez, supra note 10. See, also, McNair v. Campbell, 416 F.3d
1291 (11th Cir. 2005); Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999).
13 See Gutierrez, supra note 2.
STATE v. ThorpE 	17
Cite as 280 Neb. 11

court’s final determination regarding purposeful discrimina-
tion was clearly erroneous.14
[3] Although the prosecutor must present a comprehensible
reason, the second step of the analysis does not demand an
explanation that is persuasive, or even plausible; it is sufficient
if the reason is not inherently discriminatory.15 As examples,
we have determined the State’s explanations for a strike to
be race neutral in the following circumstances: (1) when a
prospective juror’s residence was close to the crime scene,16
(2) when a prospective juror had a close family member who
was a convicted felon,17 (3) when a prospective juror was
employed at a church,18 and (4) when a prospective juror was
young and single and might be attracted to the defendant.19 In
contrast, when reviewing a gender discrimination challenge,
we held that the State’s use of peremptory strikes on six males
was not supported by a gender-neutral reason when the State
explained that its purpose was to achieve gender balance on
the jury.20
These cases illustrate that only inherently discriminatory
explanations are facially invalid. We conclude that the State’s
articulated reasons for striking juror No. 31 were clearly race
neutral because they had no relationship to her race.
But Thorpe argues that even if the articulated reasons were
race neutral, the trial court nevertheless erred in its evalua-
tion of the persuasiveness of the reasons offered by the State.
Specifically, he argues that the State’s reasons for striking juror
No. 31 are unpersuasive because they were based on “nothing
more than misinterpretation of comments” made by that juror.21
We disagree.
14 See Hernandez, supra note 10.
15 See id.
16 Robinson, supra note 9.
17 State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).
18 Id.
19 State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).
20 Lowe, supra note 9.
21 Brief for appellant at 12.
18 	280 NEBrASkA rEporTS

A review of the record quickly shows that the State’s articu-
lated reasons for striking juror No. 31 were persuasive. Any
prosecutor who could fog a mirror would have been concerned
about juror No. 31’s confusing beliefs about the proof neces-
sary to satisfy the “beyond a reasonable doubt” standard. She
was in effect saying that neither she nor the prosecutor could
know that Thorpe committed the crimes charged because nei-
ther of them had witnessed the act.
[4] Also, nothing in the record shows that the explanation
was pretextual. In determining whether a defendant has estab-
lished purposeful discrimination in the use of a peremptory
challenge, a trial court may consider whether the prosecutor’s
criterion has a disproportionate impact on a particular race. If
so, the court may consider whether such evidence shows the
prosecutor’s proffered explanation was pretextual.22
[5] In determining whether there is a sufficient pattern
of peremptory strikes to support an inference of discrimina-
tion, we have recognized the following factors as relevant:
(1) whether members of the relevant racial or ethnic group
served unchallenged on the jury and whether the striking party
struck as many of the relevant racial or ethnic group from the
venire as it could; (2) whether there is a substantial disparity
between the percentage of a particular race or ethnicity struck
and the percentage of its representation in the venire; and (3)
whether there is a substantial disparity between the percentage
of a particular race or ethnicity struck and the percentage of
its representation on the jury.23 Although we lack information
in the record to examine all of those factors, the record does
show that of the 38 jurors struck by the parties, 4 were African-
American. It also shows that of those four jurors, two jurors
were struck by Thorpe, one juror was struck by the court, and
only one juror was struck by the State. The State’s use of a
peremptory strike on only one of four African-American jurors
who were struck further supported an inference that the State’s
22 See Hernandez, supra note 10.
23 See Gutierrez, supra note 2, citing U.S. v. Ochoa-Vasquez, 428 F.3d 1015
(11th Cir. 2005).
STATE v. ThorpE 	19
Cite as 280 Neb. 11

use of its peremptory challenge on juror No. 31 was not pur-
poseful discrimination.
We conclude that the trial court did not clearly err in deter-
mining that Thorpe failed to carry his burden of proving pur-
poseful discrimination.
2. Juror M iSCoNduCt
Thorpe asserts that the trial court erred when it overruled his
motion for mistrial based on improper communications between
a witness, omaha police Lt. Michele Bang, and a juror.
(a) Additional Facts
In its case in chief, the State called Bang, who oversaw the
general investigation. She testified about the cellular telephone
calls that were made and received between Sellers, Matheny,
and Thorpe at or around the time of the crimes.
Bang’s direct testimony was interrupted by a break for lunch.
As Bang left for the break, a juror stepped on the elevator with
her. The juror asked if she was a relative of “Shelly” Bang,
and Bang informed him that that was her nickname and that
she was Shelly Bang. The juror then told Bang that one of his
daughters went to school with her, and Bang remembered that
his daughter’s name was Diane and that they had gone to high
school together. Bang stated that the juror “smiled because I
remembered his daughter was Diane,” but that the conversation
ended after that and they both got off the elevator. The juror
testified that the conversation occurred in substantially the
same way. When the court asked whether his conversation with
Bang would affect him in any way or prevent him from being a
fair and impartial juror, the juror responded, “No. What differ-
ence would it make?”
After the in-chambers testimony from Bang and the juror,
Thorpe moved for a mistrial. The court overruled the motion,
finding that the communication was a “very innocent conver-
sation” and that it did not affect the juror’s ability to be fair
and impartial.
(b) Standard of review
[6,7] We will not disturb a trial court’s decision whether
to grant a motion for mistrial unless the court has abused its
20 	280 NEBrASkA rEporTS

discretion.24 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence.25
(c) resolution
[8-11] A criminal defendant claiming jury misconduct bears
the burden of proving, by a preponderance of the evidence,
(1) the existence of jury misconduct and (2) that such mis-
conduct was prejudicial to the extent that the defendant was
denied a fair trial.26 In a criminal case, misconduct involving an
improper communication between a nonjuror and a juror gives
rise to a rebuttable presumption of prejudice which the State
has the burden to overcome.27 Extraneous material or informa-
tion considered by a jury can be prejudicial without proof of
actual prejudice if (1) the material or information relates to an
issue submitted to the jury and (2) there is a reasonable pos-
sibility that it affected the jury’s verdict to the challenger’s
prejudice.28 Whether prejudice resulted from jury misconduct
must be resolved by the trial court’s drawing reasonable infer-
ences as to the effect of the extraneous information on an aver-
age juror.29
We have not applied a consistent standard for reviewing a
trial court’s determination of the effect extraneous informa-
tion would have on an average juror. In recent direct appeals
and postconviction appeals, we have clearly reviewed this
determination de novo.30 But in at least one postconviction
decision, we explicitly stated that we were reviewing the
district court’s determination on this issue under a “clearly
24 See State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
25 Id.
26 Floyd, supra note 9; State v. Harrison, 264 Neb. 727, 651 N.W.2d 571
(2002).
27 Id.
28 See Harrison, supra note 26.
29 Id.
30 See, e.g., Floyd, supra note 9; State v. Williams, 253 Neb. 111, 568 N.W.2d
246 (1997).
STATE v. ThorpE 	21
Cite as 280 Neb. 11

erroneous” standard.31 That is the general standard for review-
ing a postconviction court’s factual findings. But a review of
that case shows that we independently determined that under
all the circumstances, there was not a reasonable possibility
that communications between a nonjuror and jurors would
have affected the jury’s verdict. Because of that determination,
we concluded that the district court was not clearly erroneous
in determining that the juror misconduct did not prejudice
the defendant.32
[12,13] These cases illustrate that we have not reviewed
determinations of prejudice from juror misconduct only for
clear error. So we agree with courts that have held that
whether a defendant was prejudiced by juror misconduct
presents a mixed question of law and fact because it involves
legal conclusions about a defendant’s right to an impar-
tial jury.33 We conclude that when a defendant moves for a
mistrial based on juror misconduct, we will review the trial
court’s determinations of witness credibility and historical
fact for clear error; we review de novo the trial court’s ulti-
mate determination whether the defendant was prejudiced by
juror misconduct.
The record before us clearly shows that an improper com-
munication occurred between a juror and the witness Bang.
Because the misconduct involved a juror and a nonjuror, it
gives rise to a rebuttable presumption of prejudice to Thorpe
which the State has the burden to overcome.34
here, the communication was made during the State’s case
in chief when evidence was still being presented. But the com-
munication was unrelated to any issue before the jury. The
communication was to one juror only, and that juror did not
31 See Harrison, supra note 26, 264 Neb. at 737, 651 N.W.2d at 580.
32 See id. See, also, Williams, supra note 30.
33 See, Vigil v. Zavaras, 298 F.3d 935 (10th Cir. 2002); Loliscio v. Goord,
263 F.3d 178 (2d Cir. 2001); Sassounian v. Roe, 230 F.3d 1097 (9th Cir.
2000); U.S. v. Cheek, 94 F.3d 136 (4th Cir. 1996); People v. Avila, 46 Cal.
4th 680, 208 p.3d 634, 94 Cal. rptr. 3d 699 (2009); People v. Wadle, 77
p.3d 764 (Colo. App. 2003); Zana v. State, 216 p.3d 244 (Nev. 2009).
34 See Floyd, supra note 9.
22 	280 NEBrASkA rEporTS

share that communication with the remaining members of the
jury. And when asked whether the communication would affect
his ability to remain impartial, the juror stated, “No. What dif-
ference would it make?”
Under our de novo review, we conclude that the dialog
between Bang and the juror on the elevator amounted to mere
exchanges of pleasantries. Because the dialog was not related
in any way to the issues at trial, we conclude that it would not
have affected the average juror’s ability to remain impartial.
The trial court correctly denied Thorpe’s motion for mistrial.
3. Jury iNStruCtioN oN C oNSCiouS guilt
Thorpe contends that the trial court erred in giving instruc-
tion No. 14. The trial court gave this instruction in response to
the State’s evidence that Thorpe had attempted to intimidate
a witness.
(a) Additional Facts
Following a plea agreement, Matheny testified for the State.
During her direct examination, she stated that in August 2008,
she was being transferred to a holding cell in the county jail
when she encountered Thorpe. The two made eye contact, and
Thorpe said, “Don’t come to court.” Another female inmate
overhead the conversation and confirmed that Thorpe told
Matheny “not to testify.” This inmate testified that she could tell
Matheny and Thorpe knew each other from how their demean-
ors changed when they saw each other. The inmate thought that
Thorpe looked “threatening” when he saw Matheny and that
Matheny looked scared when she saw Thorpe. The inmate tes-
tified that after Thorpe made the statement, Matheny got very
quiet and “looked pretty upset. Maybe scared.”
During the State’s case in chief, Thorpe moved to strike the
testimony, arguing that it was not sufficient to show that Thorpe
threatened or intimidated Matheny. The court deferred ruling
on the motion to strike until the jury instruction conference.
At that conference, the court proposed jury instruction No. 14
regarding conscious guilt. It provided:
You have heard evidence regarding the Defendant’s
alleged attempt to prevent a State’s witness from testify-
ing in this case. A Defendant’s attempted intimidation
STATE v. ThorpE 	23
Cite as 280 Neb. 11

or intimidation of a State’s witness may be evidence of
the Defendant’s “conscious guilt” that a crime has been
committed and serves as a basis for an inference that
the Defendant is guilty of the crimes charged. Such evi-
dence may be considered by you in determining whether
the State has proved the elements of each of the crimes
charged beyond a reasonable doubt.
Thorpe objected to the instruction, arguing that it should not
be included because the evidence failed to show an inference
of guilt. he then renewed his motion to strike the testimony of
Matheny and the female inmate. The court overruled Thorpe’s
request. Thorpe then noted that he did not have any additions
or corrections to the instruction as it was proposed.
(b) Standard of review
[14,15] Whether a jury instruction is correct is a question of
law.35 When reviewing questions of law, we resolve the ques-
tions independently of the lower court’s conclusions.36
(c) resolution
[16] Evidence of a defendant’s attempted intimidation or
intimidation of a State’s witness is relevant evidence of the
defendant’s “conscious guilt” that a crime has been committed.
Also, it can serve as a basis for an inference that the defendant
is guilty of the crime charged.37 Thorpe does not quibble with
this general proposition, but instead contends that the testi-
mony does not sufficiently establish that he either attempted to
intimidate or intimidated Matheny. So, he argues that the testi-
mony fails to support an inference of his conscious guilt.
We addressed a similar argument in State v. Freeman.38 The
State convicted William Freeman of sexually assaulting a col-
lege student after a party. A male witness who danced with the
victim at the party testified that about 1 year after the party, he
35 See State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
36 See id.
37 See State v. Clancy, 224 Neb. 492, 398 N.W.2d 710 (1987), disapproved
on other grounds, State v. Culver, 233 Neb. 228, 444 N.W.2d 662 (1989).
38 State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004).
24 	280 NEBrASkA rEporTS

and Freeman talked at an omaha bar. During the conversation,
Freeman indicated that the police had contacted him about
the assault. Freeman then asked the witness if he had kissed
the victim on the night of the party. When the witness stated
that he had not, Freeman then said either “‘“Well, it would
help me out if you did”’” or “‘“It would have helped me out
if you did.”’”39 We held that the State could not admit this
evidence to demonstrate that Freeman attempted to intimidate
the witness, because it was unclear what Freeman actually said
and Freeman took no other steps to try to influence the wit-
ness’ testimony.
But unlike the testimony in Freeman, here the record is clear
as to the words used by Thorpe, and equally clear that those
words were an attempt by him to discourage Matheny from
testifying against him at his trial. Also, the testimony indi-
cates both that Thorpe looked “threatening” when he spoke to
Matheny and that she looked upset or scared after he spoke to
her. Contrary to Thorpe’s argument, this evidence sufficiently
supports an inference that Thorpe was conscious of his guilt
and sought to intimidate Matheny so that she would not testify
against him. The district court did not err in giving instruc-
tion No. 14.
4. life Without parole
[17] Although Thorpe does not assign or argue the issue,
there is plain error regarding his two sentences of life without
parole for the murders. plain error will be noted only where
an error is evident from the record, prejudicially affects a sub-
stantial right of a litigant, and is of such a nature that to leave
it uncorrected would cause a miscarriage of justice or result
in damage to the integrity, reputation, and fairness of the judi-
cial process.40
The Legislature has set forth the penalties for various felony
classes in Neb. rev. Stat. § 28-105 (reissue 2008). Before
a 2002 amendment, the penalty for first degree murder, a
39 Id. at 744, 677 N.W.2d at 172.
40 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010); State v. Molina, 271
Neb. 488, 713 N.W.2d 412 (2006).
STATE v. ThorpE 	25
Cite as 280 Neb. 11

Class IA felony, was “[l]ife imprisonment.”41 The 2002 amend-
ment changed that penalty to “[l]ife imprisonment without
parole.”42 But we held in State v. Conover43 that the 2002
amendment was unconstitutional because it exceeded the scope
of the proclamation that called the Legislature into special
session. We held in Conover that a sentence of life imprison-
ment without parole was not statutorily mandated, and because
it was erroneous but not void, we remanded with directions
to resentence the defendant to life imprisonment on his mur-
der convictions.
In State v. Gunther44 the defendant argued that under our
holding in Conover, his sentence of life imprisonment without
parole was erroneous but not void and sought remand for impo-
sition of a sentence of life imprisonment. The State conceded
this error, and we remanded for the imposition of a sentence of
life imprisonment. And in State v. Robinson,45 a defendant was
sentenced to life imprisonment without parole even though the
murder he committed occurred before the 2002 amendment to
§ 28-105. on plain error review, we found this sentence to be
erroneous but not void, and remanded for imposition of a sen-
tence of life imprisonment.
We conclude that allowing Thorpe’s sentences of “[l]ife
imprisonment without parole” to stand would result in dam-
age to the judicial process because the 2002 amendment to
§ 28-105 was “stricken” by this court’s decision in Conover.
The Legislature has taken no action to amend § 28-105 or
otherwise redefine the penalty for first degree murder since
our decision in Conover. Because a sentence of “life imprison-
ment without parole” is not a valid sentence for first degree
murder in Nebraska, we remand with directions that the district
court resentence Thorpe to “life imprisonment” on his mur-
der convictions.
41 See, § 28-105(1) (reissue 1995); State v. Conover, 270 Neb. 446, 703
N.W.2d 898 (2005).
42 See 2002 Neb. Laws, L.B. 1, 3d Spec. Sess. (Nov. 22, 2002).
43 Conover, supra note 41.
44 State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).
45 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
26 	280 NEBrASkA rEporTS

V. CoNCLUSIoN
Thorpe’s assignments of error lack merit. But plain error
exists in the sentences imposed for his murder convictions. We
affirm the convictions and sentences on the weapons charges.
We affirm the murder convictions but vacate the sentences
on the murder charges. We remand with directions that the
district court sentence Thorpe to life imprisonment on both
murder charges.
affirMed iN part, aNd iN part
reMaNded With direCtioNS.
CENTrAL CITY ED. ASSN. v. MErrICk CTY. SCh. DIST. 	27
Cite as 280 Neb. 27
C eNtral C ity eduCatioN aSSoCiatioN, aN uNiNCorporated
aSSoCiatioN, appellee , v. M erriCk C ouNty SChool diStriCt
No. 61-0004, alSo kNoWN aS C eNtral C ity
publiC SChoolS, a politiCal SubdiviSioN
of the State of NebraSka , appellaNt.
783 N.W.2d 600
Filed June 18, 2010. 	No. S-09-521.
1. Commission of Industrial Relations: Appeal and Error. In a review of orders
and decisions of the Commission of Industrial relations involving an industrial
dispute over wages and conditions of employment, an appellate court’s standard
of review is as follows: Any order or decision of the commission may be modi-
fied, reversed, or set aside by the appellate court on one or more of the following
grounds and no other: (1) if the commission acts without or in excess of its pow-
ers, (2) if the order was procured by fraud or is contrary to law, (3) if the facts
found by the commission do not support the order, and (4) if the order is not sup-
ported by a preponderance of the competent evidence on the record considered as
a whole.
2. Commission of Industrial Relations: Administrative Law. The Commission of
Industrial relations is an administrative agency empowered to perform a legisla-
tive function and, as such, has no power or authority other than that specifically
conferred on it by statute or by a construction thereof necessary to accomplish the
purposes of the act establishing the commission.
3. ____: ____. Under Neb. rev. Stat. § 48-818 (reissue 2004), orders of the
Commission of Industrial relations may establish or alter the scale of wages,
hours of labor, or conditions of employment, or any one or more of the same.
4. Declaratory Judgments. The function of a declaratory judgment is to determine
justiciable controversies which either are not yet ripe for adjudication by conven-
tional forms of remedy or, for other reasons, are not conveniently amenable to
the usual remedies.